Shamsuddin, J.
1. Petitioner in O.P, (Lunacy) No. 159 of 1980 on the files of the District Court, Thiruvananthapuram is the appellant.
2. Appellant filed the above application under Sections 40, 41, 42, 62 and 63 of Indian Lunacy Act IV of 1812 (hereinafter referred to as the Act), seeking to declare that his father's sister, Pathummal Beevi Kunju is a lunatic and to appoint the petitioner as the guardian of her person and properties. There is also a prayer in the petition to declare that the decree passed in O.S. NO. 91 of 1975 on the file of the Munsiffs Court, Nedumanged is void and will not bind the lunatic or her properties. The application was dismissed by the learned District Judge stating that questions were put to her by him and on a perusal of the answers given by her, he was not satisfied that she was of unsound mind. In this M.P. Appeal, appellant has challenged the order of the court below.
3. The aforesaid Pathumal Beevi Kunju is a widow. The father of the petitioner was acting as the guardian, but he passed away. It is alleged in the petition that the aforesaid Pathumal Beevi Kunju was insane for the last 25 years and that 1st and 2nd counter petitioners collusively obtained a decree in O.S. 91/75 against the alleged lunatic, without getting a guardian appointed for her under Order 32, Rule 15, C.P.C. 1st counterpetitioner is the paternal uncle of the petitioner and the brother of the alleged lunatic. 2nd counter petitioner opposed the application and disputed the correctness of the averments contained in the petition and denied that the aforesaid Pathummal Beevi Kunju is a lunatic.
4. Section 3(5) of the Act defines 'lunatic' as an idiot or person of unsound mind, Chapter IV of the Act deals with judicial inquisition as to lunacy proceedings in presidency towns and Chapter V relates to proceedings in lunacy outside presidency towns. Section 62 states that whenever any person not subject to the jurisdiction of any of the courts mentioned in Section 37 (Courts in Presidency Towns) is possessed of property and is alleged to be a lunatic, the District Court, within whose jurisdiction such person is residing may, upon application, by order direct an inquisition for the purpose of ascertaining whether such person is of unsound mind and incapable of managing himself and his affairs. Section 64 states that the provisions of Sections 40, 41 and 42 shall regulate the proceedings of the District Court with regard to the matters to which they relate. Sub-section 1 of Section 40 states that notice shall be given to the alleged lunatic of the time and place at which it is proposed to hold the inquisition. Sub-section 2 of Section 40 states that if it appears that personal service on the alleged lunatic would be ineffectual, the court may direct such substituted service of the notice as it thinks fit. Sub-section 3 of Section 40 states that the court may also direct a copy of such notice to be served upon any relative of the alleged lunatic and upon any other person to whom in the opinion of the court notice of the application should be given. Sub-section 1 of Section 41 states that the court may require the alleged lunatic to attend at such convenient time and place as it may appoint for the purpose of being personally examined by the court, or by any person from whom the court may desire to have a report of the mental capacity and condition of such alleged lunatic. Sub-section 1 of Section 65 invests the District Court with powers to appoint two or more persons to act as assessors to thecourt in the inquisition, Sub-section 2 of Section 65 states that upon the completion of the inquisition, the court shall determine whether the alleged lunatic is of unsound mind and incapable of managing himself and his affairs or may come to a special finding that such alleged lunatic is of unsound mind so as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others.
5. In this appeal, learned counsel for appellant submitted that the court below has not properly exercised jurisdiction vested in it under the Act. It is contended that there was no proper inquisition as contemplated under the law. Learned counsel further pointed out that in the plaint in O.S. 91/75, the plaintiff admitted that the aforesaid Pathummal Beevi Kunju was of unsound mind, but still no guardian or next friend under Order 32, Rule 15, C.P.C. was appointed. Learned counsel submitted that the property involved in O.S. 91/75 measuring 43 cents was purchased by the lunatic under registered sale deed of Midhunam 112; and that the lunatic is residing in a building in the said property and the respondents had taken steps to evict the lunatic from the property in execution of the decree in the above where she was set ex parte. In the backdrop of the above circumstances, learned counsel submitted, the court should have made a proper inquisition before dismissing the application. Learned counsel also submitted that the answers of the alleged lunatic to the various questions put to her by the court itself would indicate that she is of unsound mind. He also complained that though an application was filed for getting the lunatic examined by an expert, that was not allowed by the court below.
6. On the other hand, learned counsel for respondents submitted that the court has power to dismiss the application in limine without directing inquisition. Learned counsel heavily relied on the observations of Subba Rao, C.J. (As he then was) in Ganga Bhavanamma v. Somaraju, AIR 1957 AP 938 which reads as follows:--
'......... the District Court may direct aninquisition, if a person is alleged to be alunatic for the purpose of ascertaining whether such person is of unsound mind and is incapable of managing himself and his affairs. If he directs an inquisition, he shall determine two questions (i) whether the alleged lunatic is of 'unsound mind' and is incapable of managing himself and his affairs and (ii) whether, though he is incapable of managing his affairs, he is capable of managing himself. Though the Act defines 'lunatic' as an idiot or a person of unsound mind, the said words have not been defined.
In Halsbury's Laws of England, 2nd Edition vol. 21, 'unsoundness of mind' is defined as a defect of reason consisting either in its total or partial absence or in its perturbation. At page 273, the learned author divides persons of mental incapacity into three categories (i) idiots, that is, persons who were born insane; (ii) lunatics, that is, persons who have become insane since birth and (iii) lunatics by their own act, for instance, drunkards. The Indian Lunacy Act comprehends the first two categories of insanity.'
Then the court quoted with approval the following passage in Teka Devi v. Gopal Das, AIR 1930 Lah 289 (A) (at page 291):
'Now in assuming jurisdiction under the Lunacy Act, the court must, first of all, keep in view the distinction between mere weakness of intellect and lunacy, as understood in the Act. In Section 3(5) a 'lunatic' is defined as meaning an 'idiot or a person of unsound mind', and it is hardly necessary to point out that it is only with 'lunatics', as defined above, that the Act is concerned. It is therefore, the duty of the court before proceeding further, to determine judicially whether the person alleged to be incapable of managing himself or his affairs is really a lunatic in this sense.'
The Court ultimately proceeded to hold thus :
'It will be seen from the aforesaid discussion of the case-law that a court has power to dismiss an application in limine without directing inquisition. They also bring out the meaning of the words 'idiot' and 'unsoundness of mind'. Both indicate an abnormal state of mind as distinguished from weakness of mind or senility following old age. A man ofweak mental strength cannot be called an idiot or a man of unsound mind. The intellectual competency of the human mind is of varying degrees. It fluctuates between brilliance and dullness. Sometimes in the same individual brilliance in one field surprisingly appears in juxtaposition with subnormal practical apprehension in an allied field. The Act is not intended to protect dull-witted people but only those who suffer from a mental disorder or derangement of the mind.'
7. A Division Bench of the Allahabad High Court cautioned the Court about the gravity and seriousness of the consequences that may follow from a decision adjudging a person as lunatic in Joshi Ram Krishan v. Mst. Rukmini Bai, AIR 1949 All 449 in the following words at page 451 :
'It has, at the very outset, to be realised that an order declaring a person to be of unsound mind and incapable on that account of managing his affairs is an order of a very serious character. It has the effect of disqualifying him from using his own property in the manner he desires and placing a drastic check on his rights and privileges which as a normal individual, he would be entitled to enjoy.'
8. In Peter v. Tresa, 1983 Ker LT 807 : (AIR 1984 Ker 35) a Division Bench of this Court had occasion to consider a similar question, Bhaskaran Nambiar, J. speaking for the Bench, made the following observations at page Ker 36 (of AIR) :--
'In dealing with the problem posed to the care of the Courts, the scheme and object of the Act contemplate cautious approach, careful concern and a just determination through the watchful process of a judicial enquiry. It seems to be clear that the Court has to issue directions for inquisition in the first instance before further proceedings can continue. Inquisition is investigation or examination whether the person who is alleged to be a lunatic is of unsound mind and incapable of managing his affairs. This direction for inquisition precedes an enquiry as contemplated under the Act. This directioncan be issued on the basis of the averments made in the petition, the affidavits, if any, filed and other materials produced in support of the case. It is, therefore, necessary that the application filed should contain all necessary and relevant matters and it is imperative that it also contains the names of the relatives of the alleged lunatic.'
9. A reading of the relevant provisions of the Act would indicate that the first thing to be done on receipt of an application for adjudicating a person as insane is that the Judge should consider whether the case is one which calls for an order directing an inquisition. Once he comes to the conclusion that it does call for such an order, then it is his duty to pass an order directing inquisition. A preliminary investigation alone is required to justify an order directing an inquisition. Without an order directing an inquisition, the inquisition itself would be without jurisdiction, See AIR 1927 Ca] 636 and AIR 1930 Lah 289.
10. In Jan Muhammed v. Nizamuddin, AIR 1926 Lah 586 a learned single Judge of Lahore High Court held that in a case where lunacy is contested, Court should not base its conclusion on personal observation alone, but follow the procedure in Section 62. It is no doubt true that as pointed out by Govinda Menon, J. (as he then was) in Vemasani Narasamma v. Vemasami Rama Naidu, AIR 1951 Mad 648, an order directing an inquisition into a man's state of mind is a very serious thing and that such an order is intended by the statute to be a judicial determination carefully made upon adequate materials. In K. Sivasankara Panicker v. P. Ravindranath, 1988 (2) Ker LJ 106, Sukumaran, J. has also highlighted the adverse evil consequences that may befall the party against whom mental incapacity is alleged and pointed out that it is only proper that such a party is given ample opportunity to challenge or explain away the materials produced. At the same time, we cannot also forget the harm that will be caused to a really insane person if necessary protection is not afforded to his person and property by appointing a competent person to act as his guardian as envisaged by the provisions of the Act.
11. No inquisition proceedings have been followed in the instant case. It has come out that the plaintiff himself admitted in the plaint O.S. 91/75 that Pathummal Beevi Kunju was insane for the last several years prior to 1975. It is the case of the appellant that having stated so, the plaintiff made a false averment in the plaint that the alleged lunatic recovered from insanity. Such a plea was raised, according to the appellant, with mala fide and fraudulent intention. The decree was passed ex parte and there was no contest.
12. As pointed out in some of the decisions cited above, there may be cases where the Court on questioning the alleged lunatic may be satisfied that the alleged lunatic is of sound mind and in such cases the Court would be justified in dismissing the application without making any direction for inquisition. But, that cannot be considered as a general rule. It depends upon the facts and circumstances of each case to decide whether in a given case the Court would be justified in dismissing the application after questioning the alleged lunatic before an inquisition. In the backdrop of the present case, we are of the view that the Court should have directed an inquisition. As pointed out earlier, the plaintiff in O.S. 91/75 himself in the plaint therein admitted that Pathummal Beevi Kunju was insane for the last 25 years prior to the institution of that suit. In the circumstances, we feel that the Court should have directed an inquisition before dismissing the application. In the circumstances, we set aside the order of the Court below and remand the matter for fresh disposal. We direct that an inquisition shall be held in the circumstances of this case. The Court below will dispose of the matter afresh after giving opportunities to the parties to adduce evidence in the inquisition proceedings to substantiate their respective contentions.
M. F. Appeal is allowed as above. Parties will appear before the Court below on 30-3-1992. Parties will bear their respective costs.